Adjusting the Working-from-Home Policy? Consult the works council first!

Working from home has become an integral part of modern employment. Many organizations currently operate under hybrid work arrangements, allowing employees to split their time between home and the office. However, there is growing pressure on working from, as more and more employers require their staff to return to the office more frequently. Working from the office would improve productivity, foster social cohesion, and strengthen in-person collaboration.

If case an employer plans to change the working-from-home policy, they must remember to involve the works council (ondernemingsraad) in the decision-making process. A recent ruling by the Amsterdam court confirms that the works council has the right to approve or reject such proposed changes.

The case at hand: Returning to the office:
At the start of the COVID-19 pandemic, employer Asus decided to close its Dutch office and have all employees work from home. In late 2021, the company’s headquarters (located outside the Netherlands) issued a new hybrid policy stating that employees would be allowed to work from home no more than two days a week. In February 2022, Asus Netherlands submitted a proposal to its works council to require employees to return to the office one or two days per week. After receiving a positive response from the council, employees were expected to work in the office at least one day per week from February 28, 2022, and two days per week from March 28, 2022.

In January 2023, Asus once again consulted its works council. This time, Asus requested input on implementing the hybrid policy (drafted by headquarters) allowing employees to work from home for a maximum of two days per week (and therefore requiring employees to work in the office for three days). The works council advised Asus to maintain the current policy of one or two office days. Despite this, Asus insisted on adopting the new hybrid policy and reiterated this in December 2023, formally requesting consent from the council. The council denied their consent. Asus then turned to the court, primarily seeking a ruling that the works council had no right of consent over the policy. Alternatively, Asus requested substitute consent to implement the hybrid model.

The court’s ruling
The court ruled that the proposed change to the working-from-home policy falls within the works council’s right of consent. A working-from-home policy/arrangement pertains to working conditions, which are significantly different when working from home versus working in an office. Factors such as commuting, flexible scheduling, work-life balance, and the customization of the work environment all change. Therefore, the proposed policy change required the council’s consent.

The court also denied Asus’s request for substitute consent. Substitute consent can only be granted by the court in case the works council’s refusal is deemed unreasonable, or in case the employer has compelling reasons for implementing the policy. Asus provided only general arguments regarding employee productivity. The works council, on the other hand, provided to an internal employee survey showing that the majority preferred the existing remote work setup. In fact, this flexible policy was a key reason why employees chose to work for (and stay with) Asus. The works council also noted that employees bear their own commuting and parking costs, meaning the policy change would result in additional expenses for them.

The court sided with the works council, determining that their refusal to consent to the adjustment of the policy was not unreasonable. Furthermore, the court found no compelling interests on the side of Asus to justify a substitute consent. There was no evidence of negative consequences from not following headquarters’ directives. As a result, Asus was denied substitute approval, and the current working-from-home policy (a minimum of two office days per week) remains in effect.

What does this entail for your organization?
If you are considering to adjust the working-from-home policy, such as reducing the number of working-from-home days, it is important to involve your works council early in the process. When requesting consent, be well-prepared, and clearly demonstrate why the adjustment is necessary or your organisation. In addition, it is recommended to take employee interests into account, such as the availability of office space, commuting time, and work-life balance.

If the works council denies consent, the employer may seek substitute consent from the court. However, this is not easily provided by the court. The court will assess whether the works council acted unreasonably in denying consent and whether there are compelling reasons to implement the change to the working-from-home policy regardless.

In short: The works council holds a strong position when it comes to working-from-home policies. We therefore strongly recommend to involve the works council.

Feel free to contact us if you have questions about adjusting working conditions.